Citation Nr: 9923182
Decision Date: 08/17/99 Archive Date: 08/26/99
DOCKET NO. 96-45 710 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to a compensable evaluation for right ear hearing
loss disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. M. Ivey, Associate Counsel
INTRODUCTION
The veteran had active service from January 1988 to April
1991. In June 1996, the Board of Veterans' Appeals (Board)
granted service connection for right ear hearing loss
disability. This matter came before the Board on appeal from
an August 1996 rating decision of the New Orleans, Louisiana,
Regional Office (RO) which, in pertinent part, effectuated
the Board's award and assigned a noncompensable evaluation
for the veteran's right ear hearing loss disability. The
veteran has been represented throughout this appeal by the
Disabled American Veterans.
This matter was remanded by the Board in July 1998 for the RO
should schedule the veteran for VA examination for
compensation purposes which was sufficiently broad enough to
accurately determine the current nature and severity of his
right ear hearing loss disability. The RO scheduled the
examination, however the veteran failed to report for the
examination. Neither the veteran nor his representative has
made any representations as to his failure to report for the
scheduled examination.
Preliminary review of the record does not reveal that the RO
expressly considered referral of the veteran's claim for an
increased evaluation for right ear hearing loss disability to
the VA Undersecretary for Benefits or the Director, VA
Compensation and Pension Service for the assignment of an
extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1998).
That regulation provides that to accord justice in an
exceptional case where the schedular standards are found to
be inadequate, the field station is authorized to refer the
case to the Undersecretary for Benefits or the Director, VA
Compensation and Pension Service for assignment of an
extraschedular evaluation commensurate with the average
earning capacity impairment. The governing criteria for such
an award is a finding that the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards. The United
States Court of Appeals for Veterans Claims (Court) has held
that the Board is precluded by regulation from assigning an
extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1998) in
the first instance; however, the Board is not precluded from
raising this question, and in fact is obligated to liberally
read all documents and oral testimony of record and identify
all potential theories of entitlement to a benefit under the
law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996).
The Court has further held that the Board must address
referral under 38 C.F.R. § 3.321(b)(1) only where
circumstances are presented which the Director of VA's
Compensation and Pension Service might consider exceptional
or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
Having reviewed the record with these mandates in mind, the
Board finds no basis for further action on this question.
VAOPGCPREC 6-96 (1996).
FINDINGS OF FACT
1. The veteran was scheduled for a VA examination but failed
to report and there is no evidence of "good cause" which
would excuse him of his obligation to cooperate with the VA
in the development of his claim.
2. The VA has fulfilled its duty to assist the veteran in
the development of his claim by making reasonable attempts to
obtain all evidence necessary for the proper adjudication of
the veteran's claim.
3. Right ear hearing loss disability is manifested by an
average pure tone threshold of 48 decibels with
discrimination ability of 94 percent correct.
CONCLUSION OF LAW
Right ear hearing loss disability is no more than 0 percent
disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 3.321, 4.7, Part 4, Diagnostic Code 6100 (1998); 64
Fed.Reg. 25202-25210, May 11, 1999.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran asserts on appeal that the record supports
assignment of a compensable evaluation for his right ear
hearing loss disability.
The veteran has presented a well-grounded claim for an
increased disability evaluation for his service-connected
disability within the meaning of 38 U.S.C.A. § 5107(a) (West
1991). When a claimant is awarded service connection for a
disability and subsequently appeals the RO's initial
assignment of a rating for that disability the claim
continues to be well grounded as long as the rating schedule
provides for a higher rating and the claim remains open.
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
The Board has considered the issues raised by the United
States Court of Appeals for Veterans Claims (Court) in
Fenderson v. West, 12 Vet.App. 119 (1999). The Board has
continued the issue as entitlement to an increased
evaluation. The appellant is not prejudiced by this naming
of the issue. The law and regulations governing the
evaluation of the disability is the same regardless of how
the issue has been phrased. It also appears that the Court
has not provided a substitute name for the issue. In
reaching the determination, the Board has considered whether
staged ratings should be assigned. We conclude that the
evidence of record is inadequate to determine that staged
ratings are appropriate in this case.
II. 38 C.F.R. § 3.655
Once a particular claim is well grounded, VA has a statutory
obligation to assist the claimant in the development of the
claim. However, the requirement that VA assist claimants in
developing the facts pertinent to their claims is not to be
construed as shifting from the claimant to VA the
responsibility to produce necessary evidence. 38 C.F.R.
§ 3.159(a) (1998). In order for VA to process claims,
individuals applying for benefits have a responsibility to
cooperate with the agency in the gathering of the evidence
necessary to establish allowance of benefits. Morris v.
Derwinski, 1 Vet.App. 260, 264 (1991).
VA's duty to assist, under 38 U.S.C.A. § 5107(a) (West 1991),
is not always a one-way street, nor is it a blind alley. A
claimant has the duty to cooperate with VA's efforts to
provide an adequate medical examination and submitting to the
Secretary all medical evidence supporting his claim. Olson
v. Principi, 3 Vet.App. 480, 483 (1992).
When entitlement or continued entitlement to a benefit cannot
be established or confirmed without a current VA examination
or reexamination and a claimant, without good cause, fails to
report for such examination, or reexamination, action shall
be taken in accordance with paragraph (b) or (c) of this
section, as appropriate. Examples of good cause include, but
are not limited to, the illness or hospitalization of the
claimant, death of an immediate family member, etc.
38 C.F.R. § 3.655(a) (1998).
When a claimant fails to report for an examination that was
scheduled in conjunction with an original compensation claim,
the claim shall be rated based on the evidence of record.
38 C.F.R. § 3.655(b) (1998).
Due to the need for medical evidence to adequately rate the
service-connected disorder, the RO scheduled the veteran for
a VA audio examination at the VA Medical Center (VAMC) in New
Orleans, Louisiana. He was to report for an appointment on
September 14, 1998. A statement from the VAMC indicates that
the veteran failed to report to the appointment. Neither he
nor his representative has provided a reasonable explanation
for his failure to appear.
In a VA Form 9, signed by the veteran on October 10, 1996, he
listed his current address in New Orleans, Louisiana.
There is no indication in the record that the veteran changed
his address, and there is no evidence that the correspondence
from the RO was undeliverable for any reason. Even assuming
that he may have moved, he still had an obligation to inform
the RO of his change of address. In this regard, the United
States Court of Veterans Appeals has said that it is the
claimants' burden to keep VA apprised of their whereabouts.
If they do not do so, there is no burden on the part of VA to
turn up heaven and earth to find them. Hyson v. Brown, 5
Vet.App. 262, 265 (1993).
The Board's remand and the RO's supplemental statement of the
case informed the veteran that failure to report for the
examination could result in the denial of his claim for an
increased evaluation.
II. Increased Evaluation
Service connection for right ear hearing loss disability was
granted by means of Board decision, dated June 1996. The RO
assigned a noncompensable evaluation in August 1996.
Service-connected disabilities are rated in accordance with a
schedule of ratings, which are based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38
C.F.R. Part 4 (1998).
Evaluations for defective hearing range from noncompensable
to 100 percent based on organic impairment of hearing acuity
as measured by the results of controlled speech
discrimination tests together with the average hearing
threshold level as measured by pure tone audiometry tests in
the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz.
38 C.F.R. § 4.85 (1998); VA Regulations - Title 38 Code of
Federal Regulations Schedule for Rating Disabilities -
Supplement No. 25 (May 24, 1999). See 64 Fed.Reg. 25202-
25210 May 11, 1999. To evaluate the degree of disability of
service-connected defective hearing, both the old and the
revised rating schedules establish eleven auditory acuity
levels designated from level I for essentially normal acuity
through level XI for profound deafness. 38 C.F.R. §§ 4.85
and Part 4, Diagnostic Code 6100, VA Regulations - Title 38
Code of Federal Regulations Schedule for Rating Disabilities
- Supplement No. 25 (May 24, 1999). See 64 Fed. Reg. 25202-
25210 May 11, 1999.
When impaired hearing is service-connected in only one ear,
in order to determine the percentage evaluation from Table
VII, the non-service-connected ear will be assigned a Roman
Numeral designation for hearing impairment of I, subject to
the provisions of 38 C.F.R. § 3.383 (1998).
The appellant underwent a VA audiological evaluation in
August 1992. Pure tone thresholds for the right ear, in
decibels, were as follows:
HERTZ
1000
2000
3000
4000
Average
Right
45
55
45
45
48
Speech audiometry revealed speech recognition ability of 94
percent in the right ear.
The veteran was seen at the VA Ears, Nose and Throat Clinic,
in New Orleans, Louisiana, from September 1992 to May 1993.
Audiometric examinations were not conducted.
At the RO hearing, held August 1993, the veteran testified
that he was not accepted back onto active duty from the
reserves due to a marked increase in hearing loss. He stated
that his right ear hearing loss was worse than his left
because of the surgery on the right side of his jaw. The
veteran indicated that he did not complain about the hearing
loss because it really did not bother him.
The United States Court of Veterans appeals has noted that
the assignment of disability ratings for hearing impairment
are derived at by a mechanical application of the numeric
designations assigned after audiological evaluations are
rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349
(1992). The veteran's pure tone threshold average for the
right ear, in decibels was 48 which, corresponds to I under
both the old and the new regulations. His speech recognition
ability was 94 percent, which corresponds to I under both the
old and the new regulations. In this case, the numeric
designations produce a noncompensable disability evaluation.
38 C.F.R. Part 4, Diagnostic Code 6100.
The appellant did not report for the scheduled VA audiometric
examination to determine the current severity of his right
ear hearing loss disability. Pursuant to 38 C.F.R.
§ 3.655(b) (1998) when a claimant fails to report for an
examination that was scheduled in conjunction with an
original compensation claim, the claim shall be rated based
on the evidence of record. The evidence of record does not
warrant an increased evaluation for right ear hearing loss
disability.
ORDER
An increased rating for right ear hearing loss disability is
denied.
LAWRENCE M. SULLIVAN
Member, Board of Veterans' Appeals